Law of Arkansas Surface and Groundwater Rights

1. Law of Arkansas Surface and Groundwater Rights Edward Swaim Arkansas Natural Resources Commission

2. Topics to be covered • The right to use surface water and groundwater • Limitations on surface water and groundwater rights • Arkansas Natural Resources Commission permitting and registration • Protecting surface water and groundwater rights • Current issues in water rights • Current and future water availability • Water use trends and issues • The Arkansas Water Plan

3. The Right to Use Surface water and Groundwater • Arkansas is “water rich” • We receive about 48 inches of rainfall per year • This translates to 138 million acre-feet of precipitation in an average year • We measure over 92 million acre feet of streamflow yearly • Abundance keeps us from fighting

4. Riparian Land • Land contiguous to a body of water • “Unity of title” vs. “source of title” • Right to use water is a property right • No “use it or lose it” requirement

6. Common Law Riparian Doctrine • Purest form of rule: “Natural Flow” • Each property owner who has water flowing by his land is entitled to have the full flow of the stream going by without significant pollution from upstream

7. Progress Made Rule Impractical • Uses such as agricultural irrigation, mill ponds, and industrial use would diminish the “natural flow” to downstream neighbors • Wastewater discharge

8. Reasonable Use • Industrial development and technology required changes to riparianism • Consumptive and non-consumptive use limited by their reasonableness and whether they cause unreasonable harm to other riparians • Adopted in Arkansas in 1955 in Harris v. Brooks

9. Harris v. Brooks • Harris v. Brooks, 283 S.W.2d 129, 225 Ark. 436(1955) • Farmers v. boat dock • Analyzed natural flow and reasonable use theory and adopted the latter • But, it is impractical to have the Arkansas Supreme Court set stop-pump lake levels!

10. Harris v. Brooks Rules • Domestic use superior • Other uses equal • Lawful use destroying another lawful use must yield or may be enjoined • Lawful use interfering or detracting from another lawful use requires determination of whether interfering use is reasonable or must be adjusted

11. Groundwater “…so secret, occult and concealed, that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible.” Frazier v. Brown, 12 Ohio St. 294 (1861)

12. Groundwater Cases • Jones v. Oz-Ark-Val Poultry Co., 228 Ark. 76, 306 S.W. 2d 111 (1957) • Adopted “American Rule” of reasonable use • Rejected “English Rule” of unlimited pumping • Lingo et al. v. City of Jacksonville, 258 Ark. 63, 522 S.W.2d 403 (1975) • Similar case with a municipal water system’s well field in a rural area

13. Protecting Surface and Groundwater Rights • “The right of a riparian owner to take water inheres in the soil and it is vested.” Thomas v. LaCotts, 257 S.W.2d 936, 96 Ark. 653 (1953) • “The riparian right does not depend upon use and is not lost by nonuse.” Thomas v. LaCotts at 940 • Property right + Reasonableness of use = Successful defense of right to water

14. Legislation to Manage Water Rights • Dry periods bring court cases and legislation (As do floods) • State rejected Western-style allocation in the 1950s and 1980s • Laws to give predictability to water use: • Regulation of dams • Minimum streamflow • Allocation during shortage • Non-riparian transfer

15. Dams • Dams 25 feet or higher and impounding 50 acre-feet or more of water must be permitted • Hazard classifications bring inspection and emergency action requirements • Can only impound “surplus water” and must release water at a rate that doesn’t cut off lower riparians

16. Minimum Streamflow • Quantity required to meet the largest of instream flow need, including interstate compacts, navigation, fish and wildlife, water quality, and aquifer recharge • Can be set by rulemaking (Ark. River 1990 White River 2009) or case-by-case • Triggers allocation

17. Non-Riparian Permitting • Pre-1985 not legal, but not quite illegal • Harrell v. City of Conway, 271 S.W.2d 924, 224 Ark. 100 (1954) Surface water • Lingo et al. v. City of Jacksonville, 258 Ark. 63, 522 S.W.2d 403 (1975) Groundwater • Public utilities had no inherent right to anything beyond riparian use on the intake and well site, but, no big deal if there’s no shortage

18. Plum Bayou Irrigation Project

19. Non-Riparian Permitting Law • 1985 Breakthrough to allow a permitting process to move our abundant surface water • Current and future riparian rights, aquifer recharge, fish and wildlife needs, navigation, and interstate compacts are protected • 25% of everything above that is permittable • Non-riparian use is inferior to riparian use

20. Water Use Registration/Reporting • Annual registration with local conservation district or with ANRC • Surface and groundwater • Exceptions

21. Allocation of Surface Water • 1957 effort by the legislature to streamline Harris v. Brooks process • Arkansas Code section 15-22-217 • Step one: Declare a shortage: “not sufficient water in a stream to meet all beneficial uses” • Then a notification and adjudication process starts

22. Usable Without Allocation • < 1 acre-foot (325,900 gallons) per year • Diffuse surface water • Captured water • Exclusively owned water • Tailwater • Non-consumptive use • Intermittent streams

23. Reserved Uses • Water use that can’t be limited through allocation: • Domestic and Municipal domestic • Minimum streamflow • Federal water rights • AGRICULTURE (2013)

24. Allocation Preferences • Sustaining life • Maintaining health • Increasing wealth

25. Allocation Hierarchy • Registered riparian use • Non-registered riparian, but used • Non-riparian permitted INTRAbasin • Non-riparian permitted INTERbasin • Out-of-state transfer • Never used, never registered riparian

26. Regulation of Groundwater Use • 1991 - Groundwater Protection and Management Act, Arkansas Code 15-22-901, et seq. • Long, appealable process • Grandfathering • Alternative surface water supplies must be available or can be made available • Issuance of “water rights”

27. Current Water Rights Issues • Groundwater availability • Water quality • Interstate transfers • Infrastructure condition and financing

28. Current and Future Availability • Current needs are being met • Water is there for future needs, but maybe not from the same source • Water use reporting, stream gauging, and aquifer measurements are some of our tools

29. Water Use Trends and Issues • Population (small percentage of overall demand and getting more efficient) • Crop irrigation – Some rise expected • Industry – Declining with loss of paper mills • Hydraulic fracturing – Never a large demand, and has slowed dramatically

30. This is where we analyze supply, demand, and “gaps” • Arkansas Code section 15-22-503 • “A comprehensive program for the orderly development and management of the state’s water and related land resources” • 1969 – Authorized • 1975 Plan updated in 1990 and 2014 • Rulemaking complete this week!

31. State and Regional Water Management and Planning Edward Swaim Arkansas Natural Resources Commission

32. Topics to be covered • Surface water resources • Groundwater resources • Regional water planning • Interstate water compacts • Future projections and challenges

33. Surface Water Resources • Excess water calculations were completed for 9 major river basins and 23 smaller river basins within the larger basins

34. Surface Water Availability • We have more than enough surface water on an annual basis to meet all needs-in-stream and out-of-stream • If we can build the diversion, storage, and distribution infrastructure, there is plenty of water physically and legally available (“excess surface water”) in most areas to reduce groundwater use to “sustainable yield”

35. 26 million AFY 92 million AFY 9 million AFY 57 million AFY

36. Groundwater Resources • Groundwater supplies 71% of our water • Arkansas is now the number two groundwater user • About 60% of our statewide use is unsustainable • Our knowledge is now a long way from viewing groundwater as “secret, occult, and concealed” • USGS Mississippi Embayment Regional Aquifer Study (MERAS)

41. Regional Water Planning • Water Plan update’s largest single section is 1,085 pages of regional reports • Five planning regions to address geographic, water supply and use differences, economics, and county lines • Will divide further in the future as planning continues

43. Arkansas River Compact • Arkansas River Compact • Equitable apportionment of Arkansas River between Arkansas and Oklahoma • 60% of the current runoff delivered to the downstream state • Water quality hottest topic

44. Red River Compact • Arkansas, Oklahoma, Texas, and Louisiana • The Ouachita River, Bayou Bartholomew, Bayou Macon, and Boeuf River basins are included in Reach IV • Current difficulty in interstate streams in SE Arkansas during summer months when rainfall is low and demand is high

45. Future Projections and Challenges • Groundwater gap of over 8 million acre-feet per year is our biggest supply challenge • Threat to the Sparta • Our analysis in the Water Plan shows a 25% reduction in crop irrigation demand possible through conservation • The remainder must be made up with surface water

46. Using Excess Surface Water • Law already provides for the use of that much excess, but not all in the eastern part of the state • We will study whether % permittable water can be increased safely in East Ark. • It will cost about $8 billion to build enough projects

47. Infrastructure • In the next 10 years: • Public water infrastructure needs $5.74 billion • Public wastewater infrastructure needs $3.76 billion • Our most useful tool is general obligation bonds • May see a bond issue in front of the General Assembly in 2017

48. Drought Planning NDMC 2013

49. Interstate Transfer Requests • Texas is thirsty • Texas has planned to look to Arkansas for water since at least the 1960s • Requests have started coming in, including one to go to the Mississippi River • Law disfavors interstate transfer and requires a long, involved process of review

50. Water Quality • Unregulated, non-point source sediment and nutrient runoff • Increased state investment • Row crop Phosphorus index • Discussion of exploring need for nutrient management planning outside NW Arkansas